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Date of Separation

In family law, the word “separation” refers to the end of a de facto relationship or marriage. Knowing the date of separation is crucial because all family court proceedings calculate time limits from when the relationship ended. There are two key situations where the date of separation is important. The first is a divorce, where the spouses must have been separated for at least one year, and the second is a property settlement, where time limits apply. Property settlements must be arranged within a year after the divorce order goes into effect or two years after the date of separation for de facto couples. This article outlines the importance of the date of separation and the role that it plays in family law.

Determining the Date of Separation

The date of separation is the day the two individuals stop living together as a couple, but it can be hard to pin down to an exact date. A typical way to establish the date of separation is when one party moves out of the shared residence. In that case, if there are questions raised over the date of separation, the parties can produce a dated residential lease or receipt for short-term accommodation as evidence of the date of separation.

However, it is not uncommon for separated couples to continue to live together for a variety of reasons. This might be because of financial reasons, or to more easily share custody of children, or just for convenience. The law makes allowance for this by permitting a couple to claim “separation under one roof.”

Agreeing to a Date of Separation

There are some questions that the parties can ask themselves when trying to determine an accurate date of separation:

  • When did the couple stop sharing a bedroom?
  • When did the couple stop having a sexual relationship?
  • When did they separate their finances?
  • When did they notify government agencies (such as Child Support Services and Centrelink) of the separation?
  • When did the parties inform family and friends of the separation?

When there is an unresolved dispute over the date of separation, the court will make a judgment based on a consideration of all relevant factors.

Property Settlement

The date of separation can greatly impact the division of assets during a property settlement. The court considers the contributions of each party during the relationship and after separation. In the 2015 case of Mahon v Mahon, the divorced couple disagreed about the date of separation, with the husband claiming that it was 2005, and the wife contending that they did not separate until 2012. Three of the couple’s children were born after 2005 yet the parties lived apart for long stretches of time. The husband alleged that he maintained a casual sexual relationship with his former wife after separation but it was not a continuation of their marriage. The court determined that the date of separation was 2005 because:

  • The wife applied to Centrelink in 2004 for a Single Parent Benefit
  • The husband purchased real estate by himself in 2005, and the wife bought property by herself in 2008.
  • The wife claimed in a 2014 statement to police that she had separated from her husband in 2007.
  • Since 2010 the wife had received Child Support Payments from the husband.

The court concluded that while it was evident that the parties maintained a sexual relationship, the birth of the children was not in of itself proof that the marriage was ongoing. The caveat to this assessment is that the wife was still entitled to a portion of the husband’s assets accumulated after separation in the property division. The wife received an overall adjustment of the asset pool in her favour because she was the primary custodian of the four minor children, and as a result, had a limited ability to earn income.

What If There Was a Reconciliation During the Separation?

It is common for a couple to attempt to reconcile during a separation. This can make it harder to assess exactly when a relationship ended. The Family Law Act 1975 provides that if a reconciliation lasts for three months or less, then the length of the first separation can be added to the subsequent separation for the purposes of limitation periods. If the couple reunites for more than three months, then the date of separation begins from the end of the reconciliation.

Steps to Take When Separating

Newly separated couples can take certain actions that should clarify the situation somewhat. They should:

  • Contact government agencies to update relationship status
  • Inform family and friends immediately, as they can provide evidence in an affidavit of the length of separation.
  • Untangle financial affairs, including notifying insurance companies, superannuation funds and banks. Joint bank accounts may also be closed and separate bank accounts established.
  • Consult a lawyer as soon as possible, as they will be able to provide advice that is tailored to the particular circumstances of the couple.

If you need more information about calculating the date of separation for a family law proceeding, please call Armstrong Legal on 1300 038 223 or send us an email to make an appointment.

Dr Nicola Bowes

This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

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